USITC Updates Section 337 Rules

The U.S. International Trade Commission (USITC) is updating its Rules of Practice and Procedure governing its section 337 investigations.

Among the most notable changes, the revised rules:

require that the notice of investigation specify in plain language the scope of the accused products or category of accused products that will be the subject of the investigation in order to avoid disputes between the parties concerning the scope of the investigation;

formally establish a “100-day” proceeding to provide for expedited discovery, fact-finding, and determinations in an investigation if the Commission, at institution, identifies a potentially investigation-dispositive issue (this formalizes an approach developed during a pilot program initiated in 2013);

clarify that the Commission may institute multiple investigations based on a single complaint where necessary for efficient adjudication;

allow the administrative law judge to sever an investigation into two or more investigations at any time prior to or upon thirty (30) days from institution, based upon either a motion by any party or upon the administrative law judge’s own judgment that severance is necessary to allow efficient adjudication; and

bring the Commission’s subpoena practice into closer conformity with the Federal Rules of Civil Procedure.

The new revised rules go into effect for 337 investigations instituted 30 days after publication in the Federal Register.

The Commission began the rulemaking effort in September 2015 by proposing amendments to its rules in order to improve the administration of 337 proceedings. Consistent with its ordinary practice, the Commission invited the public to comment on all the proposed rules amendments. The Commission received six sets of comments from organizations or law firms, including one each from the ITC Trial Lawyers Association; the Intellectual Property Owners Association; the ITC Working Group; China Chamber of Commerce for Import and Export of Machinery and Electronic Products; the law firm of Adduci, Mastriani, & Schaumberg LLP; and the Law Office of T. Spence Chubb. The Commission carefully considered all comments that it received in promulgating these updates to the USITC procedural rules.